HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Sierra
Applicant
-and-
City of Toronto and Emese Kis
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Sierra v. City of Toronto
WRITTEN SUBMISSIONS
Sandra Sierra, Applicant
Self-represented
City of Toronto and Emese Kis, Respondents
Meredith Gayda, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment.
2On May 28, 2013, the Tribunal sent the parties a Notice of Intent to Defer the Application.
3On July 11, 2013, the respondents filed submissions in support of deferring the Application pending the conclusion of the grievance and arbitration proceeding. The respondent takes the position that the Canadian Union of Public Employees, local 79 (the “Union”) has filed at least five grievances that remain outstanding which are all at different stages of the grievance procedure.
4The applicant takes the position that it is not appropriate to defer the Application because “the incidents described in my application to HRTO are not part of any grievances”.
5The Union has advised that it takes no position on whether the Application should be deferred.
Decision
6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.
7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, 2008 HRTO 404 2008 HRTO 404, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
8Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
9The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, 2003 SCC 42, 2003 SCC 42, 2003 SCC 42).
10In this case, it is apparent that there is substantial overlap between the facts and allegations covered by the Application and those referred to in the grievances. Despite the applicant’s assertion to the contrary, it is clear that the Application refers to the alleged disparate treatment that she has received through the imposition of discipline which is the subject-matter of a number of grievances. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. I also note that in this matter, the arbitrator will have the jurisdiction to address all claims, including alleged violations of the collective agreement. Therefore, I find it is most fair, just and expeditious to defer this Application. The Application will be deferred pending the completion of the grievance and arbitration process.
11The Tribunal directs the parties’ attention to Rule 14 which sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.
Dated at Toronto, this 23rd day of July, 2013.
“Signed By”
Geneviève Debané
Vice-chair